IIRST CIRCUIT COURT STATE OF HAWAII

FILED

2811 APR -3 AN 8: VC

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAIsI

CLARENCE CHING and MARY MAXINE KAHAULELI°,

Plaintiffs, VS.

SUZANNE CASE, in her official capacity as Chairperson of the Board of Land and Natural Resources and state historic preservation officer, BOARD OF LAND AND NATURAL RESOURCES, DEPARTMENT OF LAND AND NATURAL RESOURCES,

Defendants.

CIVIL NO. 14-1-1085-04 GWBC (Declaratory Judgment

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER; NOTICE OF ENTRY

Jury-waived trial: Dates: Sept. 29, 30, Oct. 1,

and 2, 2015 Time: 8:30 a.m. Judge: Gary W.B. Chang

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

The above-entitled action came on for jury-waived trial

before the Honorable Gary W.B. Chang, in his courtroom, on

September 29, 30, October 1, and 2, 2015, plaintiffs CLARENCE

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CHING and MARY MAXINE KAHAULELIO [hereinafter "Plaintiffs"]

being represented by David Kimo Frankel, Esq., and Summer L.H.

Sylva, Esq., and defendants SUZANNE CASE, BOARD OF LAND AND

NATURAL RESOURCES, and DEPARTMENT OF LAND AND NATURAL RESOURCES

[hereinafter collectively "Defendants"] being represented by

Daniel A. Morris, Esq., Deputy Attorney General.

The court having heard the evidence and argument of counsel

and good cause appearing therefor, the court hereby makes the

following findings of fact and conclusions of law and order.

FINDINGS OF FACT:

Parties:

1. If any of these findings of fact are conclusions of

law, then they shall be so construed.

2. Plaintiffs Clarence Ching and Mary Maxine Kahaulelio are

residents of the State of Hawaii. They have in the past and are

currently actively engaged in cultural practices upon the

Pohakuloa Training Area that is the subject of this action.

Cultural practices may include, but are not necessarily limited

to, (1) song, dance, and chant about Pohakuloa and its history,

(2) walking upon the lands at Pohakuloa, feeling, showing, and

experiencing reverence, respect, and celebration of said lands,

(3) honoring the rich cultural history, significance of, and

sacredness of Pohakuloa, Hualalai, Mauna Loa, and Mauna Kea,

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(4) enjoying the native plants, animals, and insects that reside

in Pohakuloa, and (5) recognizing what a precious cultural jewel

Pohakuloa is to all of the people of Hawaii and their ancestors.

3. Defendant Suzanne Case is the chair of the Board of Land

and Natural Resources and the State Historic Preservation

Officer. She is sued in her official capacities. Suzanne

Case's predecessor was William Aila Jr.

4. Defendant Board of Land and Natural Resources

[hereinafter "Board"] is an administrative board that heads the

official business of the Department of Land and Natural

Resources for the State of Hawaii.

5. Defendant Department of Land and Natural Resources

[hereinafter "DLNR"] is a cabinet level department of the

executive branch of the State of Hawaii. The DLNR manages and

administers the public lands for the State of Hawaii. The

DLNR's mission is to enhance, protect, conserve, and manage

Hawaii's unique and limited natural, cultural, and historic

resources held in public trust for current and future

generations of the people of, and visitors to, Hawaii nei in

partnership with others from the public and private sectors.

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Introduction:

6. This is a declaratory judgment action in which

Plaintiffs seek a determination of Defendants' obligations, if

any, to maintain and care for the leased lands under a

government lease of public ceded lands at Pohakuloa on Hawaii

Island. The lease that is involved in the instant action is

State General Lease No. S-3849 [hereinafter "Said Lease"]. The

State of Hawaii is the owner of these leased ceded lands.

7. Under Said Lease, the State of Hawaii (as lessor) leased

three parcels of land in the Pohakuloa area on the Island of

Hawaii to the United States of America ["USA"] to use for

military training. Some of the training included live

ammunition fire into a specific area referred to as the "Impact

Area."

8. Defendant William Aila Jr., in his official capacity as

the then-chair of DLNR, believes that military training

activities have caused damage to public land, natural resources,

and cultural sites in Hawaii.

9. According to the website maintained by the State's

Kaho'olawe Island Reserve Commission at

http://kahoolawe.hawaii.gov/history.shtml, the U.S. Navy did not

clear all unexploded ordinance from 25% of the surface of the

island and these areas remain unsafe.

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10. Defendant Case's predecessor William Aila Jr. through

the federal court's decision in Malama Makua v. Rumsfeld, 163 F.

Supp. 2d 1202 (D. Haw. 2001) and subsequent decisions in that

same case (Malama Makua v. Gates, 2008 U.S. Dist. LEXIS 19201

(D. Haw. Mar. 11, 2008) and Malama Makua v. Gates, 2009,U.S.

Dist. LEXIS 5050 (D. Haw. Jan. 23, 2009)), is aware of the

difficulties encountered in getting the federal military to

clean up the unexploded ordinance in Makua.

11. Defendant William Aila Jr., in his official capacity

as the then-chair of DLNR, is aware that the military has failed

to clean up all the ordinance remaining after the military's use

of the land it leased in Waikane Valley.

12. All of the information and knowledge acquired by and

known to William Aila Jr. is imputed to Defendants.

13. Plaintiffs, in the past and currently, use the subject

lands at Pohakuloa for Hawaiian cultural purposes.

14. The USA uses the Pohakuloa Impact Area portions of the

leased lands for live fire training grounds. As a result,

Plaintiffs allege that the amount of ordinance remnants, debris,

and trash are strewn about the subject leased lands are not

insignificant.

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15. Plaintiffs have filed this lawsuit to determine

whether the Defendants have any obligation to maintain and/or

clear the leased lands of said ordinance remnants and trash or

otherwise cause the same to be accomplished.

16. It should be noted that lessee USA under Said Lease is

not a party to this action since Plaintiffs are not seeking any

relief directly against lessee USA.

The Lease:

17. In August 1964, the State of Hawaii, represented by

the Board, entered into a sixty-five (65) year lease with the

USA, which lease is designated as State General Lease No.

S-3849 (also referred to herein as "Said Lease"), to use three

parcels of land consisting of 22,971 acres of land at Pohakuloa

on Hawaii Island for military training purposes for the total

cost of one dollar ($1.00) for the entire 65 year lease period

ending on August 16, 2029. [Hereinafter "Subject Lands".]

18. The lease contained the following provisions of

particular significance herein:

9. In recognition of public use of the demised premises, the [USA] shall make every reasonable effort to . . . remove or deactivate all live or blank ammunition upon completion of a training exercise or prior to entry by the said public, whichever is sooner.

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14. In recognition of the limited amount of land available for public use, of the importance of forest reserves and watersheds in Hawaii, and of the necessity for preventing or controlling erosion, the [USA] hereby agrees that, commensurate with training activities, it will take reasonable action during its use of the premises herein demised to prevent unnecessary damage to or destruction of vegetation, wildlife and forest cover, geological features and related natural resources and improvements constructed by the Lessor, help preserve the natural beauty of the premises, avoid pollution or contamination of all ground and surface waters and remove or bury all trash, garbage and other waste materials resulting from [USA] use of the said premises.

18. The Lessor hereby agrees that, commensurate with the public use of the premises herein demised, it will take reasonable action during the use of the said premises by the general public, to remove or bury trash, garbage and other waste materials resulting from use of the said premises by the general public.

19. Subject to obtaining advance clearance from the plans and training office of the [USA's] controlling agency . . . officials and employees of the Lessor shall have the right to enter upon the demised premises at all reasonable times to conduct any operations that will not unduly interfere with activities of the [USA] under the terms of this lease; provided, however, that such advance clearance shall not be unreasonably withheld.

19. The lease is silent with respect to any extension of

the lease term. Therefore, at this time, the lease terminates

by its express terms on August 16, 2029, the end of the 65 year

lease period. However, nothing in the lease prohibits the

parties thereto from extending the lease term by mutual

agreement.

20. The Subject Lands are public, ceded lands, and are

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owned by the State of Hawaii. As such, the Subject Lands are

part of the public lands trust. Public trust lands are

state-owned lands that are held for the use and benefit of the

people in general of the State of Hawaii. The State of Hawaii

is the trustee of these public lands in the public trust. The

trustee of the public lands trust has the highest duty to

preserve and maintain the trust lands. This duty is broadly

coined in the concept of "malama 'aina"—to care for the land.

21. The USA has allowed for inspections of the Subject

Lands. However, only a minimal number of inspections by the

State of the Subject Lands have occurred to date.

22. In 1964, the lawyers representing the Board during the

negotiation of Said Lease with the USA expressed a desire to

have the USA include in Said Lease a provision that required the

USA to restore the leased premises upon termination of the

lease. Ultimately, the lease did not include such a provision.

At best, the USA agreed to include paragraphs 9, 14, 18, and 19

in Said Lease.

23. Paragraph 9 obligates the USA to make every reasonable

effort to remove or deactivate all live or blank ammunition upon

completion of a training exercise or prior to entry by the

public.

24. Paragraph 14 obligates the USA to take reasonable

action to avoid pollution or contamination of the lease premises

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and to remove or bury trash, garbage, and other waste materials

resulting from the USA's use of the leased premises.

25. Paragraphs 18 and 19 provides for various rights of

entry by the Defendants.

26. Apparently, the negotiations between the State and the

USA regarding the Pohakuloa lands were very broad, covering the

full range of options, including the possible transfer to the

federal government of title to the subject Pohakuloa leased

lands. The State of Hawaii eventually elected not to deed title

to the Subject Lands to the federal government. Instead, the

State chose to enter into a 65 year lease for the Subject Lands.

The State thought that a lease, instead of a deed, offered the

State greater control over the condition of the land because a

lease protects the public interest in the Subject Lands since

the State will get the land back after the lease expires. J.M.

Souza, Jr., stated this in his March 9, 1965 letter to James J.

Detor, the Head of the Land Management Division of DLNR.

27. The State of Hawaii never abandoned its interest in

protecting and preserving the condition of the Subject Lands.

On or before April 4, 1973, in connection with a maneuver permit

applied for by the federal military, Tom K. Tagawa, a State

Forester from DLNR, recommended that, as a condition to the

issuance of such a permit to the military, the State demand that

the military "clean up debris." By letter dated June 28, 1974,

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James J. Detor, a Programs Administrator for DLNR, wrote to

defendant BLNR and recommended that the BLNR grant the maneuver

permit, subject to certain conditions. One of the conditions is

to clean up all materials the military deposits upon the land:

The [military] shall, within a reasonable time after completion of the maneuvers, remove all equipment or other materials placed by it in the permit area, and shall remove, bury or otherwise

satisfactorily dispose of all trash, garbage, etc., resulting from the permitted uses . . . .

Condition of Subject Lands:

28. The USA has in the past, and currently does, engage in

military training exercises upon the Subject Lands. This area

is generally referred to as the Pohakuloa Training Area ["PTA"].

The training includes live fire training that uses live and

blank ammunition as well as live explosive munitions.

29. Cultural monitors, who spent extensive time on State

lands at the PTA, observed military debris, including unexploded

ordnance and spent shell casings, scattered across the Subject

Lands.

30. Defendants are aware that there is a possibility that

unexploded ordinance (UXO) and munitions and explosives of

concern (MEC) are present on the state-owned ceded PTA Subject

Lands.

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31. A November 2010 report was prepared by the United

States Army Corps of Engineers, and is entitled "Final—

Archaeological and Cultural Monitoring of Construction of Battle

Area Complex (BAX) for Stryker Brigade Combat Team (SBCT),

Pohakuloa Training Area, Hawaii Island, Hawai'i." It addressed

the conditions upon the PTA and some of the cultural concerns.

This report (exhibit 27) included the following observations and

recommendation from cultural monitors:

6.2 History

Information regarding song, dance, and chant passed down through many generations will express the most profound understanding of such a wonderful place. This is a profound understanding that gives life, that gives respect, and that builds relationships with what we know as our environment, our elements, and our God.

In oral traditions of the Hawaiians, the high peaks are considered to be a place for the Gods. These peaks and places are very sacred. Mauna Kea, Mauna Loa, and Hualalai are the peaks that border Pohakuloa Training Area (PTA).

From the ice age until today, many people, native vegetation and animals have lived in PTA. It has also been recorded and written that many functions and events occurred in PTA. The native ua'u bird, feral pigs and ungulate ["hoofed"] animals became the permanent residents. High concentrations of native plants and insects live here. At one time, it was the residency of a great leader and chief 'Umi and his army.

Exh. 27 at 67.

6.3.1 Introduction

The perspective and understanding of the land to the Hawaiian People is the base of our existence,

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resources, generally food and the resources are all connected. The 'aina (land) means plentiful "food." To develop unconsciously, to destroy and to misuse the land in ways that are not good for the land is not appreciated. The land is a God, an entity of energy that has life and gives life. .

The questions are asked: "Why do they have to train here in Hawaii" and "how is the training done?" As we experienced on Kaho'olawe Island, Makua Valley, and other places in Hawaii, impacts of the military are critical. The land will never be the same. Some areas will never be used again, and all areas are considered hazardous.

Id. at 68.

6.3.2 Impacts

The Military has been operating for half a century at Pohakuloa. Their impacts are damaging in many ways. Training of military causes displacement of native vegetation and destroying of land that will never be safe for future generations.

Ungulates have overpopulated the land (figure 57). The lack of control of ungulates leads to an imbalance of the land, animals, and people. The result of an imbalance causes deficiency of, or a lack of, a system that doesn't work for the community of all plants, animals and people.

6.3.3 Archaeology Sites

There are varieties of sites in PTA SAX that have been protected and cared for with temporary fencing. Policies and procedures need to be developed and/or reviewed to be in accordance with cultural input. Proper cultural procedures and policies in place will provide a sense of integrity and respect for the

archaeological sites and the valuable flora and fauna for the life of the living.

Id.

Id.

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6.3.5 Recommendations

As cultural monitors we would like to see military impacts stopped at Pohakuloa as well as other places in Hawaii. Thoughts of training with environment friendly munitions might be something to explore.

Reforestation and ungulate control projects are strongly suggested to remedy damages already done to the land in BAX area. The Military needs to implement some kind of cleanup process as part of their training in PTA. Remnants of military trash is everywhere.

Id. at 72 (emphasis added).

6.3.6 Expressions

My name is Leina'ala Benson. My husband and I raised our children in Honaunau . . . . Being of Hawaiian ancestry and having a "war veteran" father, allows me to have a view of this project on both sides of the spectrum. I understand the need to have our young men and women trained for service. I also feel the need to conserve what is left of our native resources.

I can't even begin to explain the dire need for mass ungulate control. In the past 8 months I have observed the increase of this population by at least one third. They are destroying our precious native ecosystem. Immediate attention to this matter is imperative to the restoration in order for native plants that inhabit these beautiful mountains to have their chance to thrive again. Another major concern is the military debris that is left behind after training including unexploded ordinance that is carelessly discarded. There is a need to have some type of cleanup plan implemented in the military training process.

Id. at 73 (emphasis added).

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32. Four (4) years later, a September 2014 report entitled

"Archaeological and Cultural Monitoring Report for Activities

Related to Construction of the Proposed Battle Area Complex

(SAX) for the Stryker Brigade Combat Team (SBCT), U.S. Army

Pohakuloa Training Area (PTA), Island of Hawaisi, Hawaisi TMK:

(3) 4-4-016:005" [hereinafter this report is referred to herein

as "2014 Cultural Monitoring Report" or "2014 CMR"] was prepared

for the United States Army Corps of Engineers, Honolulu

District, by Cultural Surveys Hawai'i, Inc. [hereinafter "CSH"].

This report was prepared after CSH completed monitoring

fieldwork in connection with the proposed construction of a

Battle Area Complex (SAX) within the PTA. Some relevant

findings or recommendations in the 2014 CMR includes the

following.

Remnants of live fire training are present within the SAX, including stationary targets, junk cars, an old tank, crudely built rock shelters, and miscellaneous military rubbish. Spent ammunition is scattered across the landscape.

Exhibit 38 at 5.

While many people have expressed that they generally support the training of our troops, there is ongoing concern that such training should necessarily require destruction of the land.

The impact of the live fire training extends beyond the limits of the Impact Area. For example, materials such as white phosphorous can travel well beyond the projectile impact site, and UXO [unexploded ordinance] can be transported unintentionally from one

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area to another. . . . This lease . . . requires the land to be restored to its original state when returned. This cannot occur if the land remains so littered with UXO that it is unsafe for anyone to go on the land. If this is the case, the land will be rendered unusable forever—one eighth of our island will become unavailable for use by any of our future generations. This is not acceptable nor could it be construed in any way to be in compliance with the Statehood compact.

Therefore, in order for the Army to meet the lease termination deadline, we strongly recommend the Army begin now to seek funding to initiate a serious cleanup effort throughout the leased training areas bounding the impact areas: that major impact/UXO areas be subjected to thorough cleanup . . . .

Id. at 75-76 (emphasis added)(bold in original).

33. The recommendation to begin seeking funding to

initiate serious clean up is of particular significance because

paragraph 32 of the Said Lease states: "The Lessor's compliance

with any obligations which may be placed on it by this lease

shall be subject to the availability of funds and/or personnel."

Therefore, the foresight to consider the availability of federal

funds to undertake any clean up activity is a significant

consideration in any effort or plan to clear the Subject Lands

of the military training remnants and trash.

34. In addition to the Subject Lands, there are lands that

appear to have been used as a former bazooka range Munitions

Response Site [hereinafter "MRS"] from 1950 through the mid-

1060s—this use predates the inception of the Said Lease.

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35. In a draft document entitled "Action Memorandum for

the Time Critical Removal Action," that was prepared in March

2015 by the United States Army Garrison at Wheeler Army Airfield

on Schofield Barracks in Wahiawa, Oahu, Hawaii, it was reported

that the Former Bazooka Range MRS is located at the Pohakuloa

Training Area. As of the March 2015 draft report, the bazooka

range was designated as a non-operational range and is off

limits to training units. However, notwithstanding this

"non-operational" status, the bazooka range was apparently used

as a military maneuver area through the early 2000s. During a

site inspection of the bazooka range area that was jointly

conducted by DLNR and the Army in 2014, the area was found to be

"heavily contaminated on the surface with material potentially

presenting an explosive hazard (MPPEH)and munition debris (MD)."

(Emphasis added.) A subsequent inspection by two military

explosive ordinance disposal units found that the following

types of ordinance were observed to be present:

1.M29A2 training rounds with dummy M405 fuse,

2. Practice 81mm mortars, and

3. High explosive anti-tank (HEAT) rifle grenades.

Other suspected fired ordinance at the bazooka range area also

included:

1.M28A2 bazooka rounds with M404 fuse, and

2.M30 white phosphorus (WP) bazooka rounds.

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The Army noted that the sheer densities and quantities of

ordinance that are present on the ground at the former bazooka

range area "coupled with the accessibility to the public make

for the potential for significant danger to public health and

welfare." The estimated cost of remediating the danger as of

March 2015 was $2,353,000. Of course, costs would have

significantly increased as of the date of the instant decision.

The Army recommended that the removal of ordinance danger

because of the significant possibility that ordinance exists at

the former bazooka range area that "presents an imminent and

substantial endangerment to public health, or welfare, or the

environment."

36. The Defendants are aware that military training

activities on the Subject Lands pose a significant and

substantial risk of harm or damage to Said Lands, and persons

who may foreseeably come upon Said Lands, which includes harm or

damage to the cultural use of the Subject Lands.

37. In a March 13, 2013 memorandum from Steve Bergfeld

(Acting Hawaii Branch Manager for DLNR) to Kevin Moore (State

Lands Assistant Administrator), DLNR stated: "PTA should sweep

the lands North of the saddle road for UXO and remove any UXO

found at their expense to make the area safe for the public."

38. A true and correct copy of the Final Enviornmental

Impact Statement for Construction and Operation of an Infantry

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Platoon Battle Course at Pohakuloa Training Area (March 2013)

[hereinafter "Final EIS"] can be found at

http://www.garrison.hawaii.army.mil/pta Peis/documents.htm.

39. Page ES-8 of the Final EIS states: "Decades of using

PTA as a training area have introduced a significant risk of

encountering MEC/UXO. MEC/UXO is known to exist in the impact

area and is expected to be encountered during range construction

activities; but there is also a medium risk of finding MEC/UXO

outside the impact area."

40. The types of weapons that have been used at Pohakuloa

Training Area may include small arms, grenades, machine guns,

shotguns, antitank weapons, howitzers, mortars, field artillery,

air defense artillery, explosives, rockets, missiles, and/or

weapons using ammunition containing depleted uranium.

41. Page 3-64 of the Final EIS states: "Past and current

activities at PTA have resulted in contamination of soil by

explosives and other chemicals."

42. The Army has applied to the Nuclear Regulatory

Commission for a license to possess Davy Crockett M101 spotting

round depleted uranium on ranges at the Pohakuloa Training Area.

43. Defendants are aware that military training activities

on the Subject Lands that deposit live or dummy ordinance or

debris upon the Subject Lands pose a risk to public health,

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safety, and welfare, as well as to the Plaintiffs' cultural

interests in the Subject Lands.

44. Defendants are aware of challenges in securing action

(not just representations and assurances) from the military to

fully comply with provisions of Said Lease that are intended to

(1) maintain the condition of the Subject Lands or (2) enable

Defendants to malama 'aina the Subject Lands.

45. Proper stewardship of the Subject Lands pursuant to

Defendants' public land trust duties include, but are not

necessarily limited to, periodic and meaningful inspection and

monitoring of the military training activities and their

aftermath upon the Subject Lands and reasonably accurate

documentation of such activities and the effects of such

activities to achieve transparency of Defendants' inspection and

monitoring actions.

46. Inspections inform and educate Defendants about the

nature and extent of the activities taking place in the PTA and

the effects of such activities upon the Subject Lands and enable

the Defendants to effect compliance with lease terms and

safeguard the condition and integrity of state lands.

Inspections must occur with a reasonable frequency that will

enable Defendants to meet their obligations to malama 'aina the

Subject Lands.

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INSPECTION OF SUBJECT LANDS:

47. An inspection of the Subject Lands by Defendants was

conducted on December 19, 1984. The "Inspection Report for

General Leases" for that 1984 inspection stated the following:

FINDINGS

1. Property being used for Military training purposes per lease terms.

INSPECTED BY: /s/ Samuel Lee

Exhibit 13.

48. An inspection of the Subject Lands appears to have

been conducted ten years later in 1994. The "Inspection Report

for General Leases" for that 1994 inspection stated the

following:

FINDINGS

(Blank)

INSPECTED BY: (Blank)

Exhibit 14.

49. The complaint was filed in the instant lawsuit on

April 28, 2014. The first amended complaint was filed herein on

May'12, 2014.

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50. Defendants removed the instant case to federal court

on May 29, 2014. The federal court remanded the case back to

state court on August 22, 2014.

51. Defendants filed their answer to first amended

complaint herein on September 19, 2014.

52. Then, Defendants caused an inspection of the Subject

Lands to be conducted on December 23, 2014. Unlike the

Inspection Reports from 1984 and 1994, the Inspection Report for

the December 2014 inspection was not as sparse as compared to

those from 1984 and 1994. The 2014 Inspection Report (Exhibit

16) contained much more information. After noting that the

condition of the leased premises were "not satisfactory," the

Report proceeded to quote, verbatim, the text of paragraphs 9

and 14 of the Said Lease. Then, the Report continued to posit a

number of remarks that can be summarized as follows (language in

quotation marks are taken, verbatim, directly from the Report):

a. [Verbatim from Report:] "Army personnel explained that areas used for combat training are regularly inspected and cleaned up after the exercise is complete. It was speculated that [the area located adjacent to the Daniel K. Inouye Highway fka Saddle Road] may have been used for night training and the material found may have been overlooked and will be remediated."

Court's findings (not in report): The court

finds that this comment by the Army personnel is

contradicted by other entries in this Report

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(which are noted hereinbelow). Contrary to the

representation that the Army "regularly inspected

and cleaned up after the exercise is complete,"

the Report appears to indicate that a significant

amount of debris and ammunition remnants remain

present upon the Subject Lands. This obviously

calls into question the veracity and reliability

of the Army's representation in the Report that

the areas of military exercises and training are

"regularly" cleaned up.

b. [Verbatim from Report:] "The first location was a former bazooka target range. . . . spent shell casings found at the target site. . . . The debris area was extensive and the army indicated it will take several months to properly restore the area to a condition acceptable to DLNR."

Court's findings (not in report): This is an

example of a representation in the Report that is

inconsistent with the representation that the

Army "regularly" cleans up an area after an

exercise is completed. Obviously, these shell

casings were not cleaned up after the training

exercise was completed.

c. [Verbatim from Report:] "Another location brought to staff's attention was a shooting range where many derelict vehicles were brought in for live fire targets. Staff was told this area will also be cleaned up with the removal and proper disposal of the vehicles."

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Court's findings (not in report): This is

another example of a representation in the Report

that is inconsistent with the representation that

the Army "regularly" cleaned up an area after an

exercise is completed. Obviously, these derelict

vehicles were not cleaned up after the training

exercise was completed.

d. [Verbatim from Report:] "A third location brought to staff's attention was an area used for the dumping of spent artillery shells. This area will also be cleared of all ordinance debris and miscellaneous material."

Court's findings (not in report): This is

another example of a representation in the Report

that is inconsistent with the representation that

the Army "regularly" cleaned up an area after an

exercise is completed. Obviously, these spent

artillery shells were not cleaned up after the

training exercise was completed.

53. DLNR has not met its informal goal of inspecting the

Subject Lands once every two (2) years. Additionally, DLNR has

also not provided adequate documentation of any inspection

efforts so as to provide rudimentary transparency into the

DLNR's efforts to inspect the Subject Lands so that it can

malama saina.

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54. Defendants do not appear to be well-informed of the

state of military training exercises and its effects upon the

Subject Lands. The lack of regular, meaningful inspection and

monitoring of the Subject Lands by Defendants have contributed

toward Defendants' failure to malama 'aina the Subject Lands

under the Said Lease.

55. Defendants have failed to execute their rights and

obligations under paragraphs 9, 14, 18, and 19 of the Said

Lease, to the extent that those paragraphs enable Defendants to

malama 'aina the Subject Lands.

56. As of the date the instant lawsuit was filed

(April 28, 2014), Defendants have failed to preserve and protect

the Subject Lands as required by their duties as a trustee of

the public land trust. Defendants have failed to malama 'aina

the Subject Lands under the Said Lease. These failures

constitute a breach of Defendants' trust duties that apply to

the Subject Lands. This failure has harmed, impaired,

diminished, or otherwise adversely affected Plaintiffs' cultural

interests in the Subject Lands. Plaintiffs have been harmed by

said failures of the Defendants.

57. Plaintiff Clarence Ching has hiked through various

areas within the Subject Lands. One of his cultural practices

is to malama 'aina the Subject Lands to the extent that he is

able. (The court notes that plaintiff Ching's ability to malama

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'aina the Subject Lands is very different from the duty of

Defendants to malama 'aina those lands, by virtue of the fact

that plaintiff Ching is not a trustee of the public land trust

of which the Subject Lands are a part. Plaintiff Ching's

interest in providing malama 'aina to the Subject Lands is to

the extent that he is an individual cultural practitioner, not

the State trustee.) The 'aina is of crucial importance to him,

his culture, and to his well-being. The 'aina is irreplaceable

to him. The 'aina is the foundation of his cultural and

spiritual identity as a Hawaiian. It is part of his ohana. The

land and the natural environment is alive, respected, and

treasured. Hawaii's state motto embodies a recognition of the

significance of 'aina to the people of Hawaii.

58. Plaintiff Clarence Ching has a deep and abiding

personal and ancestral attachment to the Subject Lands. He is

part Hawaiian by his ethnicity and lineage, who engages in

traditional and customary practices within and around the

Subject Lands. Mr. Ching is a descendant of chiefs, who at one

time exercised dominion over Pohakuloa, walking the same 'aina

over which he, Mr. Ching, now walks and seeks protection.

59. While hiking upon the Subject Lands, plaintiff

Clarence Ching has come across spent rifle casings, machine gun

cartridge links, unfired blanks, and other military ammunition

and other discarded debris. His ability to enjoy the beauty,

25

majesty, and aura of the Subject Lands without fear or concern

for risks to his health, to engage in the cultural practices of

his ancestors, and to ensure the long-term health of the saina

have been impaired by the littering of and damage to the

landscape, vegetation, animals, and insects of the Subject Lands

while under Defendants' watch.

60. Plaintiff Mary Maxine Kahaulelio is a native Hawaiian

with at least fifty percent (50%) Hawaiian ancestry by her

ethnicity and lineage. She lives in Waimea on Hawaii Island on

Hawaiian Home Lands in a community not far from the Subject

Lands. Plaintiff Kahaulelio has participated in Hawaiian

cultural ceremonies at Pohakuloa. The 'aina is central to her

existence. Part of her kuleana is to be a steward of the land.

It hurts Ms. Kahaulelio to see Defendants' failure to discharge

their duties as a trustee of the public land trust for the

Subject Lands. This results in the desecration of the Subject

Lands. Her ability to enjoy the beauty, majesty, and aura of

Pohakuloa, engage in the cultural practices of her ancestors on

the Subject Lands, and ensure the long-term health of the saina

has been impaired by the littering of and damage to the

landscape of the Subject Lands while under the Defendants'

watch.

26

CONCLUSIONS OF LAW

1. If any of these conclusions of law are findings of

fact, then they shall be so construed.

2. The Plaintiffs have standing to enforce their breach

of trust claim.

3. Plaintiffs are asserting a state-law breach of land

trust claim against Defendants for failing to carry out its duty

as a state land trust trustee with respect to the Pohakuloa

lands.

4. Lessee United States of America is not a party to this

action because the state-law land trust claim does not assert

any claim for relief against the United States of America or

otherwise necessarily raise any federal or breach of contract

issues against it. The Plaintiffs are only asking that the

Defendants fulfill their obligations to Plaintiffs to satisfy

their trust duties.

5. The United States of America is not an indispensable

party to the resolution of this case.

6. All public land natural resources are held in trust by

the State for the benefit of the people of the State of Hawaii.

7. The Subject Lands granted to the State of Hawaii by

Section 5(b) of the Admission Act and pursuant to Article XVI,

Section 7, of the State Constitution, excluding therefrom lands

defined as "available lands" by Section 203 of the Hawaiian

27

Homes Commission Act, 1920, as amended, shall be, and are held

by the State as a public tkust for native Hawaiians and the

general public of the State of Hawaii.

8. Ceded lands are held by the State as a public trust

for Plaintiffs and others. The Subject Lands are ceded lands of

the State.

9. Defendants are trustees of State ceded lands for the

benefit of the general public of the State of Hawaii.

10. As trustees, Defendants owe a high standard of care

when managing public trust ceded lands.

11. As trustees, Defendants owe an undivided duty of

loyalty to the people of the State of Hawaii and to the

Plaintiffs as beneficiaries of the ceded lands trust.

12. As trustees, Defendants' trust duties include, but are

not necessarily limited to, the Defendants' reasonable efforts

to achieve the following: (a) preserve and protect trust

property and (b) take a reasonable, proactive role in the

management and protection of trust property. In exercising

these duties, Defendants have a duty to consider the cumulative

effects of current usage of the Pohakuloa lands for military

training and the use of live ammunition and the running of heavy

military vehicles and other equipment upon the condition of the

land and upon the indigenous plants, animals, and insects, as

28

well as the invasion to Plaintiffs' cultural interests in the

Subject Lands.

13. As trustees of the public ceded lands trust, these

duties and obligations described hereinabove, that are owed by

Defendants, are collectively referred to as being included as

part of Defendants' duty to malama 'aina the Subject Lands. The

Defendants' duty to malama 'aina the Subject Lands is not an

absolute duty or a guarantee. Instead, the Defendants have an

obligation as trustees to use their best reasonable efforts to

discharge their duties and obligations. If factors beyond

their control (such as congressional and presidential funding

approval) prevent Defendants from achieving their plan

objectives under the law, that must be considered in determining

whether Defendants, or any of them, have discharged or breached

their trustee duties under the law. Any determination regarding

whether Defendants met their obligations as trustees of a public

land trust must necessarily be a qualitative determination made

upon a\determination of all relevant factors, not just a

mechanical formulation. Any such determination is not a

decision that is free from difficulty. Sincerity and

genuineness of good faith actions are factors to be considered,

as well as actions, obstacles, and considerations that are shown

to be pretextual. There was no evidence admitted in this trial

to indicate that lack of congressional or presidential

29

appropriation or approval is preventing anyone from undertaking

any action to remove remnants of military training or other

trash from the Subject Lands.

14. As trustees, the Defendants are obligated to use

reasonable efforts to ensure that Said Lease provisions that

affect or impact the condition of ceded lands and all living

things thereon are being followed and discharged. The State's

obligations and duties under Said Lease augment Defendants'

trust duties to malama 'aina. This duty to malama 'aina

includes both the duty to determine whether a lessee is in

compliance with the terms of its lease (through monitoring and

inspections) and to follow up to effect compliance once there is

evidence that provisions of the lease are not being followed.

15. The BLNR, through its chairperson, is also obligated

to enforce leases that constitute a disposition of public lands

under HRS § 171-7(5): "Except as otherwise provide by law the

[BLNR] through the chairperson shall: . . (5) Enforce

contracts respecting . leases or other disposition of

public lands . . f/

16. Defendants are obligated to enforce provisions of Said

Lease with the United States of America for the subject

Pohakuloa lands, particularly as any such provision implicated

Defendants' duty to malama 'aina those lands.

30

17. As part of their trust duties herein, Defendants were

obligated to enforce paragraphs 9, 14, 18, and 19 of the Said

Lease. Paragraph 9 states (emphasis added):

9. In recognition of public use of the demised premises, the Government shall make every reasonable effort to stockpile supplies and equipment in an orderly fashion and away from established roads and trails and to remove or deactivate all live or blank ammunition upon completion of a training exercise or prior to entry by the said public whichever is sooner.

Paragraph 14 states (emphasis added):

14. In recognition of the limited amount of land available for public use, of the importance of forest reserves and watersheds in Hawaii, and of the necessity for preventing or controlling erosion, the Government hereby agrees that, commensurate with training activities, it will take reasonable action during its use of the premises herein demised to prevent unnecessary damage to or destruction of vegetation, wildlife and forest cover, geological features and related natural resources and improvements constructed by the Lessor, help preserve the natural beauty of the premises, avoid pollution or contamination of all ground and surface waters and remove or bury all trash, garbage and other waste materials resulting from Government use of the said premises.

Paragraph 18 states (emphasis added):

18. The Lessor hereby agrees that, commensurate with the public use of the premises herein demised, it will take reasonable action during the use of the said premises by the general public, to remove or bury trash, garbage and other waste materials resulting from use of the said premises by the general public.

Paragraph 19 states (emphasis added):

19. Subject to obtaining advance clearance from the plans and training office of the [USA's] controlling agency . . . officials and employees of the Lessor shall have the right to enter upon the demised premises at all reasonable times to conduct any operations that will not unduly

31

interfere with activities of the [USA] under the terms of this lease; provided, however, that such advance clearance shall not be unreasonably withheld.

18. Defendants had these duties, and they continue to have

these duties, as trustees from the inception of the Subject

Lease and for the entire duration of the life of Said Lease.

19. As trustees, the Defendants also have a duty to

maintain a record of their actions to malama 'aina. Without

sufficient records of all of Defendants' observations and

actions, if any, to discharge its duty to malama 'aina the

Subject Lands, there is no way for Defendants to demonstrate

that it did, in fact, discharge its duties as trustee of public

land trust. The absence of meaningful records negate

transparency of Defendants' observations and actions.

20. The records relating to Defendants' efforts to inspect

and report upon its findings were spotty at best. Only three

reports of any significance, for 1984, 1994, and 2014, were

introduced into evidence. The 1984 and 1994 reports were

grossly inadequate and, in the case of the 1994 report,

virtually nonexistent because of its lack of information

pertaining to the 1994 inspection. There were other studies or

site visits in connection with other business regarding the

Subject Lands, such as environmental impact statements, but the

court did not view these events as being undertaken as part of

Defendants' effort to discharge their duty to malama 'aina the

32

Subject Lands. The absence of any inspection or monitoring

reports for years other than 1984, 1994, and 2014

creates a presumption that no action to malama 'aina in the form

of monitoring and inspections were taken, to the extent that any

such records were not admitted into evidence herein.

21. In addition to the relevant findings of fact

hereinabove, the presumption is that prior to December 2014

(more than seven months after this suit was filed), the

Defendants failed to conduct any inspections to monitor or to

confirm the United State' compliance with paragraphs 9, 14, 18,

and 19 of the Said Lease given: (a) the summary nature of the

2014 report, (b) the virtual nonexistent nature of the 1994

inspection report; (c) the sparse and incomplete nature of the

1984 inspection report; and (d) the absence of any other records

regarding inspections or monitoring of the condition of the

Subject Lands by the Defendants.

22. Because the Defendants act as trustees when managing

the Subject Lands, when Defendants conduct an inspection in the

course of discharging their duties as trustees, they must record

findings or observations of sufficient detail regarding the

United States' activities upon the Subject Lands that will

enable one to determine from the content of the report the

nature, scope, and extent of the United States' activities upon

33

the Said Lands, provided that, no military secrets or matters of

national security are breached or compromised.

23. The Defendants breached their trust duties by failing

to: (a) conduct regular reasonable (in terms of frequency and

scope), periodic monitoring and inspection of the condition of

subject public trust lands (the monitoring should involve direct

(in person) or indirect (via videographic or live remote

viewing) observation of actual military training exercises

(including live fire exercises of all types using live and/or

explosive munitions, as well as the use of heavy vehicles or

equipment above and upon the land) so that the monitors and/or

inspectors can observe and appreciate the destructive effects,

if any, of all such training and use of equipment); (b) ensure

that the terms of the lease that impact the condition of the

leased lands or preserving Plaintiffs' cultural interests are

being followed; (c) take prompt and appropriate follow up steps

with military or other federal government officials when

Defendants obtain or are made aware of evidence or information

that the lease may have been violated with respect to protecting

the condition of the Pohakuloa leased lands; (d) consistently

make reasonably detailed and complete records (including

contemporaneous photographic or videograpnic depictions) of

Defendants' actions to memorialize the efforts, results, and/or

actions undertaken to ensure compliance with the terms of the

34

lease that are intended to protect the condition of the

Pohakuloa leased lands and concomitant cultural interests; and

(e) to initiate or assist with the appropriation of necessary

funding to undertake clean up or other maintenance activities to

locate and remove used, spent, discarded, or deposited remnants

of military training activities of any kind (including

unexploded ordinance or ammunition) and trash upon the Subject

Lands.

24. The terms of the order of the court regarding this

matter shall not be vitiated, modified, changed, altered,

amended, or otherwise affected by any lease renegotiation,

modification, assignment, extension, amendment, or other change

or cancellation of the Said Lease

25. The Defendants would further breach their trust duties

if they were to execute an extension, renewal, or any other

change to the State General Lease No. S-3849, or enter into a

new lease of the PTA, without first determining (in writing)

that the terms of the existing lease have been satisfactorily

fulfilled, particularly with respect to any lease provision that

has an impact upon the condition of the Pohakuloa leased lands.

26. The Defendants breached their trust duty to malama

lama with respect to the Pohakuloa leased lands.

27. Plaintiffs are seeking injunctive relief compelling

the Defendants to affirmatively perform its duty to malama 'aina

35

the Pohakuloa leased lands by affirmatively enforcing the

provisions of the subject lease that impact or affect the

condition of the Pohakuloa leased lands.

28. Therefore, Plaintiffs are not seeking an injunction

order to stop Defendants from doing something. They seek an

order directing Defendants to undertake affirmative action to

discharge their duty to malama 'aina the Pohakuloa leased lands.

29. A prohibitory injunction prohibits the performance of

certain acts to preserve the status quo, whereas a mandatory

injunction goes well beyond the status quo and commands the

performance of affirmative action to do or undo an act.

30. Therefore, a mandatory injunction is particularly

disfavored in law and should not issue during the preliminary

injunction phase of a case, unless the facts and the law clearly

favor the moving party. However, unless prohibited by some

constitutional or statutory provision, a court of equity can,

and in the proper case will, award mandatory injunctive relief.

31. The instant proceeding involved the trial on the

merits and not just an interim motion for a temporary

restraining order or a preliminary injunction. When it comes to

interim relief pending the outcome of the trial on the merits,

there is a general reluctance by courts to issue a mandatory

injunction because the purposes of a temporary restraining order

or a preliminary injunction are to preserve the status quo until

36

the ultimate disposition by a trial on the merits. Mandatory

injunctive relief is seen as often compelling an act that is

well beyond preserving the status quo. Therefore, a temporary

restraining order or a preliminary injunction in the form of a

mandatory injunction is highly discouraged during the interim

stages of a case. However, the trial on the merits is not an

interim stage of the life of a civil action. It is the ultimate

adjudication of the merits of the case. As such, there is less

of a disincentive by a court to consider issuing a mandatory

injunction upon the trial on the merits. The court has much

more latitude to issue a mandatory injunction if the ultimate

adjudication of the merits justifies such relief.

32. Plaintiffs bring the instant action alleging that

Defendants breached their trustee duties. Plaintiffs have met

their burden of proof that Defendants breached their trust

duties by failing to discharge their obligations as trustees of

a public land trust. The appropriate remedy is for this court

to issue an order directing Defendants to perform their trust

duties with respect to the Pohakuloa leased lands. This

requires the court to issue relief that is in the nature of a

mandatory injunction compelling Defendants to affirmatively

perform their trustee duties and malama 'aina the Pohakuloa

leased lands.

37

33. Injunctive relief is appropriate when the Plaintiffs

have prevailed on the merits, the balance of harms favors

injunctive relief, and the issuance of injunctive relief is in

the public interest.

34. The Plaintiffs have prevailed on the merits.

35. The balance of harm favors the issuance of mandatory

injunctive relief.

36. Protection of the public trust ceded lands is in the

public interest.

37. Plaintiffs have proved by a preponderance of the

evidence and by clear and convincing evidence that the

Defendants have breached or violated their duties and

obligations as a trustee of the Subject Lands, which are public,

State-owned ceded lands.

38. Mandatory injunctive relief is appropriate here.

Plaintiffs complain that, if Defendants are not compelled to

malama 'aina the Pohakuloa leased lands, they may forever be

deprived of the right to use and enjoy said leased lands for

religious and cultural purposes. This justifies the imposition

of a mandatory injunction that requires Defendants to malama

'aina the Pohakuloa leased lands. Otherwise, it is possible

that Plaintiffs' use and enjoyment of the Pohakuloa leased lands

could be lost in the foreseeable future or possibly forever due

to contamination due to the presence of unexploded ordinance or

38

other life threatening military hazards or dangers that cannot

be eliminated or cleaned up.

39. It is within the trial court's sound discretion to

fashion appropriate injunctive relief based on the specific

facts of the case.

40. In the exercise of its sound discretion, the court

concludes that an appropriate mandatory injunction against the

Defendants includes the following relief.

ORDER

Based upon the foregoing, and any other good cause shown

herein, and good cause appearing therefor,

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that:

1. Judgment shall enter in favor of Plaintiffs and

against Defendants as to all claims that Defendants breached

their trust obligations by failing to malama 'aina the Subject

Lands.

2. Defendants are ordered to fulfill their trust

obligations by doing the following:

A. Defendants shall promptly initiate and

undertake affirmative activity to malama 'aina the Subject

Lands.

B.Malama 'aina of the Subject Lands by

Defendants includes, but is not necessarily limited t

39

1. To develop a written plan to malama saina the

Subject Lands; and

2. The plan shall include regular, periodic

on-site monitoring and inspection of the Subject

Lands; and

3. For each such monitoring or inspection event of

the Subject Lands that Defendants undertake, the

plan shall provide that the Defendants, or any of

them, shall promptly prepare a written inspection

report that provides, at a minimum, all of the

information that was called for in the

"INSPECTION REPORT" that was introduced as

Exhibit 16. In addition, each inspection report

shall also contain "RECOMMENDATIONS" by the

inspection team for appropriate action to malama

'aina the Subject Lands. The recommendations

shall also state a projected or reasonable

estimated time within which the Defendants should

be able to act upon the recommendation. This

estimated time is not binding upon the

Defendants. However, any enforcement tribunal

may consider the time recommendation in

determining whether Defendants have met their

trust obligations to malama 'aina the Subject

Lands.

4. The plan shall include a protocol of appropriate

action by Defendants to malama 'aina the subject

lands in the event that Defendants find:

a. Any actual, apparent, or probable breach

of any provision of State General Lease

No. S-3849 by the federal government that

does or may adversely affect the

condition of the Subject Lands or

Plaintiffs' cultural use of such lands,

and/or

b. Any condition or situation that may

adversely affect the condition of the

Subject Lands or may otherwise adversely

impact Defendants duty to malama 'aina

the Subject Lands, and/or

c. Unexploded ordinance and any debris

deposited upon the Subject Lands by the

federal or state military or any other

form of training or exercises that take

place upon the Subject Lands by, under,

pursuant to, or in connection with the

State General Lease No. S-3849; and/or

41

d. Any other foreign or other non-natural

item or other contaminant or debris that

is found on the Subject Lands that is

present or existing thereon by reason of

or in connection with the State General

Lease No. S-3849.

5. A plan or other assurance that any nonconforming

condition found upon the Subject Lands that was

likely caused by the lessee under Said Lease and

that threaten the condition or nature of the

Subject Lands will be reasonably brought to

pre-lease condition and a reasonable timetable

for the same.

6. A procedure to provide reasonable transparency to

Plaintiffs and the general public with respect to

the instant mandatory injunction and all of the

requirements of this order.

7. If not already in existence, the institution of a

contested case procedure adopted pursuant to

Chapter 91 of the Hawaii Revised Statutes for

Plaintiffs or any member of the general public

with standing to initiate such process in the

event that Plaintiffs or other interested party

may contest the decisions made by the Defendants

r,

42

in the course of discharging its duty to malama

'aina the Subject Lands.

8. That the plan developed by Defendants pursuant to

this order shall first be approved by the above-

entitled court before the plan is put into

action, unless otherwise authorized by the above-

entitled court. Defendants shall have a

reasonable length of time within which to submit

a proposed plan for the court's approval, which

time shall expire on December 28, 2018; unless

such deadline shall be extended by the above-

entitled court for good cause shown. Good cause

should not include any factor, condition, or

situation over which Defendants have control. In

other words, good cause for extending the

deadline should only include factors, conditions,

or situations over which Defendants have no

control.

9. The plan shall also include any and all steps

Defendants shall take to explore, evaluate, make

application for or assist or support the making

of such an application for, and securing

adequate funding, from any and all appropriate

funding sources, to plan, initiate, and conduct

43

Clarence Ching et al., vs. Suzanne Case, etc., et al., Civil No.: 14-1-1085-04(GWBC) FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

44

OF E ABOVE-ENTITLED CO

all appropriate comprehensive cleanup of the

Subject Lands in order to discharge Defendants'

duty to malama 'aina the Subject Lands.

10.The plan shall be approved by the court upon

notice and hearing to all parties herein.

3. Defendants shall execute the plan to malama saina once

it is approved by the court.

4. Plaintiffs are directed to prepare and file,

consistent with the above, and in accordance with Rule 58 of the

Hawaii Rules of Civil Procedure and Rule 2,3 of the Rules of the

.Circuit Courts of the State of Hawaii, a separate final

judgment. Said final judgment shall also specifically provide

that any and all remaining claims, if any, shall be and hereby

are dismissed with prejudice.

DATED: Honolulu, Hawaii, APR - 3 201C

Clerk, Fourteenth Divi

NOTICE SENT TO:

DAVID KIMO FRANKEL, ESQ. SUMMER L. H. SYLVA, ESQ. NATIVE HAWAIIAN LEGAL CORPORATION 1164 BISHOP STREET, SUITE 1205 HONOLULU, HAWAII 96813

Via U.S. Mail, Postage Prepaid ATTORNEYS FOR PLAINTIFFS

DANIEL A. MORRIS, ESQ DEPUTY ATTORNEY GENERAL DEPT OF THE ATTORNEY GENERAL,

STATE OF HAWAII 465 KING STREET, ROOM 300 HONOLULU, HAWAII 96813

Via U.S. Mail, Postage Prepaid ATTORNEYS FOR DEFENDANTS

NOTICE OF ENTRY

The foregoing Findings of Fact, Conclusions of Law and Order in

Civil No. 14-1-1085-04 (GWBC) has been entered and copies thereof

served on the above-identified parties by placing the same in the

United States mail, postage prepaid, on March 28, 2018